Cohen v Bread & Butter Entertainment LLC

2009 NY Slip Op 31844(U)

August 17, 2009
Supreme Court, New York County
Docket Number: 105220/07
Judge: Shirley Werner Kornreich
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Plaintiff, Index No.: 105220/07

-against- DECISION
and ORDER
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F’4
BREAD & BUTTER ENTERTAJNMENT LLC,
Trading as ULTRA, THOMAS TARDE, and
S M DERVISEVIC,
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Defendants,
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KORNREICH, SMRLEY WERNER, J.:
’?

This is a personal injury action arising from an assault at a lounge by one patron against
another. PlaintifY, the injured patron, sued the lounge, Bread & Butter Entertainment LLC (Ultra),

Thomas Tardie, who owns 96% of Ultra, and S d r Dervisevic, the patron who assaulted her.

Ultra and Tardie (collectively “movmts”) now move for summary judgment. CPLR $3212.They

previously moved for dismissal pursuant to CPLR $321l(a)(7), arguing positions much the same

as those asserted here. The court dismissed the second came of action, i. e., the Dram Shop claim,

as against Tardie only. MovanQ now seek dismissal of the first cause of action, the negligence

claim and dismissal of the Dram Shop claim as against Ultra only. They argue that: 1) Ultra is

not liable under a negligence theory since the assault was not foreseeable; 2) Tardie is not

personally liable under the negligence theory; and 3) Ultra is not liable under the General

Obligations Law $11-101 and Alcoholic Beverage Control Law $65(2) (the Dram Shop Act)

because Dervisevic was not served alcohol while visibly intoxicated. Plaintiff opposes.

I. Facts

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Ultra, a limited liability corporation, owns and manages an upscale New York City bar

and lounge. Tardie maintains his primary ofice on its premises and was working on the night of

the assault, He, however, did not witness the event.

Ultra employs its own security personnel, which are supervised by Robert Fisco. Tardie

delegated the training and hiring of those in non-managerial positions to his general manager,

Fixx Chapparro Pitre (L‘FIxx’’).Tardie did not involve himself personally in the hiring or training

of the lounge’s bartenders or security peraomul. Flxx, who had decades of experience in the

business, oversaw the nighttime operations and trained the security staff and bartenders. The

training included instruction to the bartenders not to serve visibly intoxicated patrons. Tardie

knew of no situations where a bartender had served a visibly intoxicated patron.

The lounge offers special drinking options, one of which goes by the term “bottle service”

or, alternately, ‘’table service.” The lounge grants those patrons who choose to purchase bottle

service a table at which they may sit and, in plaintiff‘s particular case, provided a pitcher of

mixed drink, a bottle of vodka, some fruit, and m assortment of mixers and other drinking-

related necessities and paraphernalia. Purchasers may only order bottle service in compliance

with the lounge’s two-bottle, minimum rule, but there is no rule or policy prohibiting drink

sharing with others outside of the purchasing party. The only real cap on alcohol consumption

under this option is the raw quantity of alcohol purchased.

Drinks at the bar were served as mixed drinks or as shots. A mixed drink or a shot

contained an ounce and a half of alcohol.

Steve Di Leonardo, the floor manager of Ultra at the time of the incident, submitted an

afidavit in which he averred that he recalled the evening in question, did not witness the

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altercation, but saw Dervisevic when he ordered drinks, and Dervisevic exhibited no signs of

intoxication. He M e r averred that Ultra had a strict policy o f prohibiting the service of alcohol

to a visibly intoxicated individual.

The direct circumstances giving rise to this action all occurred during the early hours of
Janua~y14,2007. Plaintiff was accompanied by two male friends, and they partook in the

lounge’s table service. Dervisevic was present with his friend Josh. Beyond this, there remains

some degree of variance among the submitted evidence as to what occurred.

Plaintiff testified that she overheard a fight in the lounge’s bathroom and witnessed

Dervisevic being escorted out of the bathroom by security guards, She also alleged that one of

her companions told her that he had witnessed an altercation in the bathroom, although his

understanding of the situation was fragmented and did not conclusively state that Dervisevic wa

actually involved in a fight. Plaintiff testified that subsequent to this incident, Josh helped

himself to the pitcher of mixed drink on plaintiffs table, doing so on three occasions over a

twenty minute period and gave the drinks to Dervisevic. According to plaintiff, she and her

companions said nothing the first two times Josh took drinks. However, the third time, plaintiff

said she took the drink from Josh and told him he could not take it. Plaintiff then testified that

Josh said something to Dervisevic, who became agitated and verbally confronted plaintiff. A

heated argument ensued, and a security guard came over, tried to calm Dervisevic and moved

him away. Plaintiff claimed that Dervisevic returned to her table and with another drink in his

hand. According to plaintiff, he cursed at her and she threw the alcohol in her glass at his feet.

Dervisevic responded by throwing the tequila in his glass into her face and then hitting her in the

face With the glass in his hand.

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Dervisevic’s testimony differs. Denisevic testified that he had had two or three mixed

drinks over several hours prior to arriving at the bar, and described himself as intoxicated

because he was not used to drinking alcohol. He stated that he was served two shots of vodka by

the lounge’s bartenders and claimed he sipped the drinks over a twenty minute period. He was

not aware of any fight in the lounge’s bathroom. According to Dervisevic, at some point, he

observed Josh arguing with plaintiff and three others. He walked over and asked what was going
on. In rcsponao, plaintiff and the others curead at him, and a heated verbal exchange ensued.

Two bouncers arrived and separated Dervisevic and plaintiff’s group, moving each away.

Dervisevic testified that within a minute, plaintiff approached him with her friends and threw a

drink in his face. He responded by throwing a drink in her face, whereupon she spit in his face
and someone hit him on the back of his head, Dervisevic stated that he then swung at plaintiff.

He had an empty glass in his hand as he did so. Dervisevic claimed that plaintiff was drunk.

I% Conclusions of Law

To obtain swnmary judgment, a movant must establish its cause of action or defense

sufficiently to warrant the court as a matter of law in directingjudgment in its favor. CPLR

$3212(b).It must do so by tender of evidentiary proof in admissible form.Zuckerman v Nav

York, 49 NY2d 557,562-563 (1980). Once a movant has met the initial burden, the burden shifts

to the pasty opposing the motion to show facts sufficient to require a trial of any issue of fact.

CPLR §3212@); id.at 560; see also GTF Marketing, Inc. v Colonial Aluminum Sales, Inc.,66

NY2d 965 (1 985) (complaint properly dismissed on summary judgment where affidavit of

opposing counsel was insufficient to rebut moving papers showing case has no merit). The

adequacy or sufficiency of the opposing party’s proof is not an issue until. the moving party

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sustains its burden. Bray v Rosas, 29 AD3d 422 (1st Dept 2006). Moreover, the parties’

competing contentions must be viewed “in a light must favorable to the party opposing the

motion.” Lakeside Constr., Inc. v Depew & Schetter Agency, Inc., 154 AD2d 5 13,5 15-5 16 (2d

Dept 1989).

A. Negligence as against Ultra

Plaintiff’s primary claim involves an assertion that Ultra’s failure to control or remove

Dervisevic W negligent
~ B and, therefore, that movants a m liable to her for the resulting injury she

sustained. Movants argue that Dervisevic’s actions were unforeseeable. Stevens v Spec, h.,
224

m 2 d 8 11,8 12-813 (3d Dept 1896) (no duty to protect horn extraordinary happenings); Silver v

Sheraton-Smithtown Inn, 121 AD2d 711,711 (2d Dept 1986) (innkeeper has no duty to protect

patrons from unexpected altercations); Ryan v Big 2 Coy., 2 10 AD2d 649,651 (3d Dept 1994)

(restaurant owner has no duty to protect patrons from unforeseeable altercations between

themselves). This court does not agree.

Landowners in general have a duty to act in a reasonable manner to prevent harm

to those on their property. In particular, they have a duty to control the conduct of
third persons on their premises when they have the opportunity to control such persons
and are reasonably aware of the need for such control. Applying this rationale, lower
courts have recognized that a landowner may have responsibility for injuries caused
by an intoxicated guest. Significantly, however, these decisions have uniformly
acknowledged that liability may be imposed only for injuries that occurred on
defendant’sproperty, or in an area under defendant’s control, where defendant
had the opportunity to supervise the intoxicated guest. That duty emanated not
from the provision of alcohol but from the obligation of a landowner to keep its
premises free of known dangerous conditions, which may include intoxicated guests.
[citations omitted]

DYrnico v Christie, 71NY2d76, 85 (1987)

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Given the heated nature of the verbal argument which preceded the assault, as well as the

uncontested involvement of hard liquor and security’s intervention prior to the assault, an issue

of fact exists as to whether Ultra was on notice md could have anticipated a physically violent

altercation and supervised the intoxicated gu.st(s>. In none of the three cases relied upon by

movants,i.e., Stevens, supra, Silver, supra, and Ryan, id.,were there any indications that security

or other personnel were even aware that an argument was underway until after plaintiff sustained

injuries,

Nor does movants’ argument that providing bottle service is legal and not prima facie

negligent demand dismissal. While it may be true that bottle service is a widely adopted and

lawful practice, this does not automatically exculpate movants from the need to exercise due care

in its administration. See, e.g., Siege2 v Sweeney, 266 AD2d 200,202 (2d Dept 1999) (“[A] driver

who lawfully enters an intersection with a green light may still be found partially at fault for an

accident if he or she fails to use reasonable care to avoid a collision.”). Notably, reasonableness

is often a jury question by default and, thus, best reserved for trial. Andre v Pomeroy, 35 NY2d

361,364 (1974) (suggesting this is true even if neither party contests facts material to case’s

disposition).

B. Negligence us against Turdie

In general, the actions of a corporation cannot provide a basis for liability with respect to

its principal. BUly v Cons. Much. Tool Carp., 51 NY2d 152,163 (1930). This is because the law

treats as distinct a corporation’s identity and, indeed, recognizes as absolutely fundamental the

liability shield generated by one’s decision to engage in business via the corporate form. Id;

Morris v State Dept. of Taxation u d Fin., 82 NY2d 135, 141-142 (1993). The Court of Appeals

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has suggested that not even total dominance and control over a corporation on the part of the

principal may bypass this rule. Si&, supra. The critical liability triggers are, instead: 1)

utilization of said domination as the instrument for illegal fraud or misrepresentationor 2) direct

intervention in the commission of the tort such that the “the paraphernalia of incorporation”are

ignored.’Id.; TNSHuIdings, Inc. v MKISec. C o p , 92 NY2d 335,339 (1998); Bartle v Home

Owners Cooperative, Inc., 309 NY 103, 106-107 (1 955); Espinosa v Rand, 24 AD3d 102, 102

(1st Dept 2005). Such triggers arc often referred to os satisfied only where it can be fairly stated

that the principal has acted in either “bad faith or outside his capacity as a corporate officer.”

Worthy v New York City How. Auth,, 21 AD3d 284 (1st Dept 2005) (Torn, J. concurring).

As to the first of these triggers, the uncontested facts make clear that, under the standard

espoused by SilZy and its ilk, Tardie is plainly immune to liability in the present case. Tellingly,

no fraud has even been alleged, let alone supported by plaintiff through use of admissible

material. As to the second, plaintiff essentially suggests that Tardie was personally responsible

for the negligence alleged against Ultra and, therefore, should be amenable to suit. A principal

I Plaintiff, on the other hand, suggests that Tardie’s liability rests primarily upon the level of
control he exercised over Ultra at the time of the incident. German v Bronx United in Leveraging
Dollars, Inc., 258 AD2d 25 1,252 (1st Dept 1999); Mistrulli . McFinnigan, Inc., 39 AD3d 606,
607 (2d Dept 2007). While this distorts the rule by shearing away the critical requirement of
ftaudulent behavior, it bears noting that the control Tardie exercised over Ultra and the lounge’s
maintenance was at best indirect and that no triable issue exists as to whether it reached the level
of domination required to justify rendering him amenable to suit under even plaintiffs
interpretation. For example, it is uncontested that Tardie delegated the majority of the lounge’s
“field management” to Flxx, including,relevantly, the hiring and training of both security forces
and bartending personnel. It also is uncontested that Tardie did not know that something might
be wrong on the lounge floor until after plaintiff sustained her injury. Plaintiff submits no
evidence to the contrary, choosing instead to line her m e m o m d m as to this claim with
conclusory statements and allegations that T a d k simply “ought” to be liable based upon his 96%
ownership stake and presence at the club on the morning of the incident. In light of the
previously cited authority, such is simply insufficient. Billy, 5 1 NY2d at 163.
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who does this loses the protection otherwise afforded by doing business under the laws governing

corporations. American Express Travel Related Servs. Co. v North Ad. Resources, Inc., 261

AD2d 3 10,311 (1st Dept 1999); Pestminster Constr. Co. v Sherman, 160 AD2d 867,868 (2d

Dept 1990); German, 258 AD2d at 252.

However, nothing in the present case can be fairly classified as active negligence

committed by Tardie personally. He was not present on the floor at the time of the incident and,

as was his prerogative, delegated managerial duties and control and training of security and wait

staff, to Flxx. Plaintiffs allegations that Tardie established bottle service, are irrelevant, because

Tardie acted on behalf of the corporation in establishing said service. As to plaintiff’s contention

that hiring Flxx was prima facie negligent, again,Flxx was hired by the corporation. Moreover,

this court notes that, while he may have worked at clubs previously shut down, Flxx was never

convicted of or held liable for anything. Plaintiff has not produced material evidencing anything

beyond Flxx’s mere presence in an employee capacity at these establishments. Conversely,

Tardie testified repeatedly as to Flxx’s credentials, recommendations and skill. In sum, while

Tardie owned a large share of Ultra, it cannot be said that he directly micro managed the relevant

circumstances, either within or without his duties as an Ultra manager, such that be might fairly

be described as having personally committed active negligence.

C. D a m Shop Acr as Against Ulka

It is well established that the Dram Shop Act must be narrowly construed, Gabrielle v

Cruff, 75 AD2d 939,940(3d Dept 1980); Smith v Gttli, 117 AD2d 1017 (4th Dept 1986). For

example, slurred speech, even if backed up by witness testimony that the allegedly intoxicated

person actually appeared intoxicated, is insufficient so long as such speech maintains its

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coherency. Senn Y Scudleri, 165 AD2d 346,351-352 (1st Dept 1991).

Given this restrictive approach and the material submitted by the parties in this case,

Ultra has met its burden and plaintiff has not raised a triable issue of fact, thereby rendering

summary judgment as to plaintiffs Dram Shop claim proper. See Donato v McLaughZin, 195

AD2d 685,688 (3d Dept 1993) (panting summary judgment for insufficient evidence of visible

htoxication). Here, there was no evidence to demonstrate that Dervisevic was visibly

intoxicated when he was scrvcd alcohol by the lounge’s bartenders. Rather, the evidence

provided by Di Lonardo is otherwise.’ The police reports describing Dewisevic as visibly

intoxicated, composed long after the bartenders served the drinks and after Dervisevic, according

to plaintiff, had consumed several more drinks, are immaterial. Relying upon Kish v Furley, 24

AD3d 1198,1200 (4th Dept 2003, plaintfiattempts a rebuttal of this, arguing that that case

renders the ex posb nature of these police reports irrelevant. The holding in Kish,however, is not

broad enough to support such a contention. The court in Kish merely stated that &r-the-fact

expert testimony suggesting, within a high degree of probability, that an allegedly intoxicated

person was indeed visibly intoxicated prior to service of alcohol, can defeat summary judgment.

Unlike Kish, the police reports in this case make no attempt whatsoever to imply that Dervisevic

was intoxicated, let done visibly intoxicated, at any point other than when arrested.

Plaintiff simply has not adduced evidence beyond the aforementioned police reports

indicating anything beyond the fact that the lounge’s bartenders served him some quantity of

alcohol. There is nothing on record proving or indicating, e.g,,that his speech was incoherent or

even that he slurred. Evidence that merely establishes that the allegedly intoxicated person drank

The alleged bathroom incident occurred after Dervisevic was served.

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alcohol is insufficient without more, W d f v Pmton-Farmer, 23 AD3d 1046, 1046 (4thDept

2005); Pizzaro v City of New York, 188 AD2d 591,594 (226 Dept 1992), lv denied 82 NY2d 656

(1993). Dervisevic’s own admission of intoxication also is insuficient to demonstrate that he

uppeured intoxicated at the time of service. Nehrne v Joseph, 160 AD2d 9 15,917 (2d Dept

1990).

As a final effort, plaintiff argues that Dervisevic’s alleged aggression against her should

q u a l e as evidmcc of visible intoxication. While o o u r t ~have held that escalating aggression can

constitute objective proof defcating summary judgment in Dram Shop actions, it must be noted

that nothing submitted by plaintiff meets the preliminary requirement that such aggression be: 1)

noticeable 2) before or during service of alcohol. Cf:Catania v. 124 In-To-Go, Corp.,287

A.D.2d 476,477 (2d Dept. ZOOl), lv denied 97 NY2d 699 (2002); Ryun, 210 A.D.2d at 650-651.

Dervisevic’s argument and the physical altercation with plaintiff occurred after he was served, as

did the alleged incident in the bathroom.

Insofar as bottle service is concerned, Dervisevic’s alleged consumption of plaintiffs

purchased alcohol cannot in any sense be considered as a proxy for alcohol served. Plaintiff is

correct in her assertion that Monrgomery v Om, 130 Misc2d 807 (Sup Ct, Oneida County, 1986),

held that self-service can meet the Dram Shop Act’s service requirement, but in Montgomery

defendants actually and explicitly established alcohol self-servicefor the intoxkated person

while here, conversely, Dervisevic allegedly d r d alcohol served to others. Zuccari v. Hoffman,

267 AD2d 1067,1067-1068 (4th Dep‘t 1999) (defendant not in violation of Dram Shop Act since

it did not sell alcoholic beverage directly; person who causes hjwy must be individual to whom

defendant furnished alcoholic beverage). Accordingly, it is

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ORDERED that defendants’ motion to dismiss the first cause of action alleging

negligence against Ultra is denied; and it is further

ORDERED that defendants’ motion to dismiss the first cause of action alleging

negligence against Tardie is granted, the action against him is severed and dismissed and clerk is

to enter judgment accordingly; and it is further

ORDERED that defendants’ motion to dismiss the second came of action alleging

violation of the Dram Shop Aat as againat Ultra, ia

Date: August 17,2009

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